Date: Fri, 26 May 1995 01:15:19 -0400
From: ae913@freenet.carleton.ca (Timothy Ross Wilson)
This is a summary of the Supreme Court of Canada decision rendered yesterday.
egan v. canada
James Egan and John Norris Nesbit Appellants
v.
Her Majesty The Queen in Right of Canada Respondent
and
Attorney General of Quebec, Canadian Human
Rights Commission, Commission des droits
de la personne du Quebec, Equality for
Gays and Lesbians Everywhere, Metropolitan
Community Church of Toronto, Inter-Faith
Coalition on Marriage and the Family and
Canadian Labour Congress Interveners
Indexed as: Egan v. Canada
File No.: 23636.
1994: November 1; 1995: May 25.
Present: Lamer C.J. and La Forest, L'Heureux-Dube,
Sopinka, Gonthier, Cory, McLachlin, Iacobucci and
Major JJ.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights --
Equality rights -- Old age security legislation providing
for allowance for spouse of pensioner -- Definition of
"spouse" restricted to person of opposite sex -- Whether
definition of "spouse" infringes s. 15(1) of Canadian
Charter of Rights and Freedoms -- If so, whether
infringement justifiable under s. 1 of Charter -- Old Age
Security Act, R.S.C., 1985, c. O-9, ss. 2, 19(1).
The appellants are homosexuals who have lived
together since 1948 in a relationship marked by
commitment and interdependence similar to that which one
expects to find in a marriage. When E became 65 in 1986,
he began to receive old age security and guaranteed
income supplements under the Old Age Security Act. On
reaching age 60, N applied for a spousal allowance under
s. 19(1) of the Act, which is available to spouses
between the ages of 60 and 65 whose combined income falls
below a fixed level. His application was rejected on the
basis that the relationship between N and E did not fall
within the definition of "spouse" in s. 2, which includes
"a person of the opposite sex who is living with that
person, having lived with that person for at least one
year, if the two persons have publicly represented
themselves as husband and wife". The appellants brought
an action in the Federal Court seeking a declaration that
the definition contravenes s. 15(1) of the Canadian
Charter of Rights and Freedoms on the ground that it
discriminates on the basis of sexual orientation and a
declaration that the definition should be extended to
include "partners in same-sex relationships otherwise
akin to a conjugal relationship". The Trial Division
dismissed the action. The Federal Court of Appeal, in a
majority decision, upheld the judgment.
Held (L'Heureux-Dube, Cory, McLachlin and
Iacobucci JJ. dissenting): The appeal should be
dismissed. The definition of "spouse" in s. 2 of the Old
Age Security Act is constitutional.
Per Lamer C.J. and La Forest, Gonthier and
Major JJ.: The analysis under s. 15 of the Charter
involves three steps: the first looks to whether the law
has drawn a distinction between the claimant and others;
the second questions whether the distinction results in
disadvantage, and examines whether the impugned
legislation imposes a burden, obligation or disadvantage
on a group of persons to which the claimant belongs which
is not imposed on others, or does not provide them with a
benefit which it grants others; the third step assesses
whether the distinction is based on an irrelevant
personal characteristic which is either enumerated in
s. 15(1) or one analogous thereto. The first step is
satisfied in this case, since Parliament has clearly made
a distinction between the claimant and others. The
second step is also satisfied: while it may be true that
the appellants have suffered no prejudice because by
being treated as individuals they have received
considerably more in combined federal and provincial
benefits than they would have received had they been
treated as "spouses", there is nothing to show that this
is generally the case with homosexual couples. Sexual
orientation is a deeply personal characteristic that is
either unchangeable or changeable only at unacceptable
personal costs, and so falls within the ambit of s. 15
protection as being analogous to the enumerated grounds.
All that remains to be considered under the third step is
whether the distinction made by Parliament is relevant.
In assessing relevancy for this purpose one must look at
the nature of the personal characteristic and its
relevancy to the functional values underlying the law. A
form of comparative analysis must be undertaken to
determine whether particular facts give rise to
inequality. This comparative analysis must be linked to
an examination of the larger context, and in particular
with an understanding that the Charter was not enacted in
a vacuum, but must be placed in its proper linguistic,
philosophic and historical contexts.
The singling out of legally married and common
law couples as the recipients of benefits necessarily
excludes all sorts of other couples living together,
whatever reasons these other couples may have for doing
so and whatever their sexual orientation. What
Parliament clearly had in mind was to accord support to
married couples who were aged and elderly, for the
advancement of public policy central to society.
Moreover, in recognition of changing social realities,
s. 2 was amended so that whenever the term "spouse" was
used in the Act it was to be construed to extend beyond
legal married couples to couples in a common law
marriage. Marriage has from time immemorial been firmly
grounded in our legal tradition, one that is itself a
reflection of long-standing philosophical and religious
traditions. But its ultimate raison d'etre transcends
all of these and is firmly anchored in the biological and
social realities that heterosexual couples have the
unique ability to procreate, that most children are the
product of these relationships, and that they are
generally cared for and nurtured by those who live in
that relationship. In this sense, marriage is by nature
heterosexual. It would be possible to legally define
marriage to include homosexual couples, but this would
not change the biological and social realities that
underlie the traditional marriage.
Many of the underlying concerns that justify
Parliament's support and protection of legal marriage
extend to heterosexual couples who are not legally
married. Many of these couples live together
indefinitely, bring forth children and care for them in
response to familial instincts rooted in the human
psyche. These couples have need for support just as
legally married couples do in performing this critical
task, which is of benefit to all society. Faced with the
social reality that increasing numbers choose not to
enter a legal marriage but live together in a common law
relationship, Parliament has elected to support these
relationships. Parliament is wholly justified in
extending support to heterosexual couples like this,
which is not to say, however, that it is obligated to do
so and may not treat married and unmarried couples
differently.
Neither in its purpose nor in its effect does the
legislation constitute an infringement of the fundamental
values sought to be protected by the Charter. None of the
couples excluded from benefits under the Act are capable
of meeting the fundamental social objectives thereby
sought to be promoted by Parliament. While these couples
undoubtedly provide mutual support for one another, and
may occasionally adopt or bring up children, this is
exceptional and in no way affects the general picture.
Homosexual couples differ from other excluded couples in
that their relationships include a sexual aspect, but
this sexual aspect has nothing to do with the social
objectives for which Parliament affords a measure of
support to married couples and those who live in a common
law relationship. The distinction adopted by Parliament
is relevant here to describe a fundamental social unit to
which some measure of support is given.
The impugned legislation, even had it infringed
s. 15, would have been upheld for the reasons given in
McKinney v. University of Guelph and for those mentioned
in the discussion of discrimination in this case.
Per Sopinka J.: The impugned legislation
infringes s. 15(1) of the Charter, for the reasons given
by Cory J. Such infringement, however, is saved under
s. 1. Government must be accorded some flexibility in
extending social benefits and does not have to be
pro-active in recognizing new social relationships. It
is not realistic for the Court to assume that there are
unlimited funds to address the needs of all. A judicial
approach on this basis would tend to make a government
reluctant to create any new social benefit schemes
because their limits would depend on an accurate
prediction of the outcome of court proceedings under
s. 15(1). This Court has recognized that it is
legitimate for the government to make choices between
disadvantaged groups and that it must be provided with
some leeway to do so. When the definition of "spouse" in
the Old Age Security Act is measured against overall
objectives of alleviation of poverty of elderly spouses,
it should not be judged on the basis that Parliament has
made this choice for all time. The history of the
legislation shows an evolving expansion of the definition
of the intended recipients of the benefits. The Attorney
General of Canada has taken the position that the means
chosen does not have to be necessarily the solution for
all time. Hence, since the impugned legislation can be
regarded as a substantial step in an incremental approach
to include all those who are shown to be in serious need
of financial assistance due to the retirement or death of
a supporting spouse, it is rationally connected to the
objective. With respect to minimal impairment, the
legislation represents the kind of socio-economic
question in respect of which the government is required
to mediate between competing groups rather than being the
protagonist of an individual. In these circumstances,
the Court will be more reluctant to second-guess the
choice which Parliament has made. There is also
proportionality between the effects of the legislation on
the protected right and the legislative objective. The
proper balance was struck by Parliament in providing
financial assistance to those who were shown to be in the
greatest need of assistance.
Per Cory and Iacobucci JJ. (dissenting): In
determining whether a s. 15(1) right to equality has been
violated, the first step is to determine whether, owing
to a distinction created by the questioned law, a
claimant's right to equality has been denied. During
this first step, the inquiry should focus upon whether
the challenged law has drawn a distinction between the
claimant and others, based on personal characteristics.
The second step is to determine whether the distinction
created by the law results in discrimination. In order
to make this determination, it is necessary to consider
first, whether the equality right was denied on the basis
of a personal characteristic which is either enumerated
in s. 15(1) or which is analogous to those enumerated,
and second, whether that distinction has the effect on
the claimant of imposing a burden, obligation or
disadvantage not imposed upon others or of withholding or
limiting access to benefits or advantages which are
available to others. Any search for either equality or
discrimination requires comparisons to be made between
groups of people. Whether or not discrimination exists
must be assessed in a larger social, political and legal
context. The resolution of the question as to whether
there is discrimination under s. 15(1) must be kept
distinct from the determination as to whether or not
there is justification for that discrimination under s. 1
of the Charter. This analytical separation between
s. 15(1) and s. 1 is important since the Charter claimant
must satisfy the onus of showing only that there exists
in the legislation a distinction which is discriminatory.
Only after the court finds a breach of s. 15(1) does the
government bear the onus of justifying that
discrimination.
Since the law challenged draws a clear
distinction between opposite-sex couples and same-sex
couples, this case presents a situation of direct
discrimination. As a result of the definition of a
common law spouse as a "person of the opposite sex",
homosexual common law couples are denied the benefit of
the spousal allowance which is available to heterosexual
common law couples. This distinction amounts to a clear
denial of equal benefit of the law. In addition to being
denied an economic benefit, homosexual couples are denied
the opportunity to make a choice as to whether they wish
to be publicly recognized as a common law couple because
of the definition of "spouse" set out in the Old Age
Security Act. The public recognition and acceptance of
homosexuals as a couple may be of tremendous importance
to them and to the society in which they live. To deny
homosexual couples the right to make that choice deprives
them of the equal benefit of the law.
The distinction in the Act is based on a personal
characteristic, namely sexual orientation. Sexual
orientation is analogous to the grounds of discrimination
enumerated in s. 15(1). The historic disadvantage
suffered by homosexual persons has been widely recognized
and documented. Sexual orientation is more than simply a
"status" that an individual possesses: it is something
that is demonstrated in an individual's conduct by the
choice of a partner. Just as the Charter protects
religious beliefs and religious practice as aspects of
religious freedom, so too should it be recognized that
sexual orientation encompasses aspects of "status" and
"conduct" and that both should receive protection.
The distinction drawn by s. 2 of the Old Age
Security Act on the basis of sexual orientation
constitutes discrimination. The legislation denies
homosexual couples equal benefit of the law not on the
basis of merit or need, but solely on the basis of sexual
orientation. The definition of "spouse" as someone of
the opposite sex reinforces the stereotype that
homosexuals cannot and do not form lasting, caring,
mutually supportive relationships with economic
interdependence in the same manner as heterosexual
couples. The appellants' relationship vividly
demonstrates the error of that approach. The
discriminatory impact cannot be deemed to be trivial when
the legislation reinforces prejudicial attitudes based on
such faulty stereotypes.
The impugned legislation is not saved under s. 1
of the Charter. While the objective of the spousal
allowance, which is geared toward the mitigation of
poverty among "elderly households", is of pressing and
substantial importance, the allowance in its present form
is not rationally connected to its legislative goals. A
program which included the appellants would better
achieve the intended goal while respecting the Charter
rights of gays and lesbians. Nor is the denial of the
appellants' s. 15 rights through the ineligibility for
receipt of the spousal allowance minimally impaired
simply because the appellants' joint income would have
roughly been the same because of N's receipt of
provincial support supplementing his income for a
completely unrelated reason. The provincial and federal
programs are clearly not co-extensive, and even if they
were part of the same overlapping legislative scheme,
this is not sufficient to ground a s. 1 justification.
Finally, the attainment of the legislative goal is
outweighed by the abridgment of the right in this case.
The importance of providing relief to some elderly
couples does not justify an infringement of the equality
rights of the elderly couples who do not benefit for
constitutionally irrelevant reasons. The definition of
"spouse" in s. 2 of the Act should be read down by
deleting the words "of the opposite sex" and reading in
the words "or as an analogous relationship" after the
words "if the two persons publicly represent themselves
as husband and wife".
Per L'Heureux-Dube J. (dissenting): A return to
the fundamental purpose of s. 15 of the Charter is
necessary in order to reconcile the divergent approaches
taken by this Court in recent jurisprudence, as well as
in the present case and in Miron and Thibaudeau. At the
heart of s. 15 is the protection of, and respect for,
basic human dignity. "Discrimination" must therefore be
at the forefront of the court's analysis. In order for
discrimination to be addressed and identified in all of
its varied contexts and forms, it is preferable to focus
on impact (i.e. discriminatory effect) rather than on
constituent elements (i.e. the grounds of the
distinction). Discriminatory effects must, moreover, be
evaluated from the point of view of the victim, rather
than from that of the state. Considerations of relevance
are more properly viewed as justifications under s. 1
than as factors integral to the identification of
discrimination in the first place.
The following factors must be established by a
rights claimant before the impugned distinction will be
found to be discriminatory within the meaning of s. 15 of
the Charter: (1) there must be a legislative
distinction; (2) this distinction must result in a denial
of one of the four equality rights on the basis of the
rights claimant's membership in an identifiable group;
and (3) this distinction must be "discriminatory" within
the meaning of s. 15. A distinction is discriminatory
within the meaning of s. 15 where it is capable of either
promoting or perpetuating the view that the individual
adversely affected by this distinction is less capable,
or less worthy of recognition or value as a human being
or as a member of Canadian society, equally deserving of
concern, respect, and consideration. The absence or
presence of discriminatory impact should be assessed
according to a subjective-objective standard -- the
reasonably held view of one who is possessed of similar
characteristics, under similar circumstances, and who is
dispassionate and fully apprised of the circumstances.
This determination is arrived at by considering two
categories of factors: (1) the nature of the group
adversely affected by the impugned distinction, and (2)
the nature of the interest adversely affected by the
impugned distinction. With respect to the first
category, groups that are more socially vulnerable will
experience the adverse effects of a legislative
distinction more vividly than if the same distinction
were directed at a group which is not similarly
vulnerable. In evaluating the nature of the group
affected by the impugned distinction, it is relevant to
inquire into many of the criteria traditionally employed
in the Andrews analysis, such as whether the impugned
distinction is based upon fundamental attributes that are
generally considered to be essential to our popular
conception of `personhood' or `humanness', whether the
adversely affected group is already a victim of
historical disadvantage, whether this distinction is
reasonably capable of aggravating or perpetuating that
disadvantage, whether group members are currently
vulnerable to stereotyping, social prejudice and/or
marginalization, and whether this distinction exposes
them to the reasonable possibility of future
vulnerability of this kind. Membership in a "discrete
and insular minority", lacking in political power and
thus vulnerable to having its interests overlooked, is
another consideration that may be taken into account. The
absence or presence of some of these factors will not,
however, be determinative of the analysis. However,
awareness of, and sensitivity to, the realities of those
experiencing the distinction is an important task that
judges must undertake when evaluating the impact of the
distinction on members of the affected group.
Similarly, the more fundamental the interest
affected or the more serious the consequences of the
distinction, the more likely that the impugned
distinction will have a discriminatory impact even with
respect to groups that occupy a position of advantage in
our society. While the Charter is not a document of
economic rights and freedoms, the nature, quantum and
context of an economic prejudice or denial of such a
benefit are important factors in determining whether the
distinction from which the differing economic
consequences flow is one which is discriminatory. The
discriminatory calibre of a particular distinction
cannot, however, be fully appreciated without also
evaluating the constitutional and societal significance
of the interests adversely affected. Tangible economic
consequences are but one manifestation of the more
intangible and invidious harms flowing from
discrimination, which the Charter seeks to root out. In
other cases, the prejudice will be to an important
individual interest rather than to one that is economic
in nature. Both categories of factors emphasize that it
is no longer the "grounds" of the distinction that are
dispositive of the question of whether discrimination
exists, but rather the social context of the distinction
that matters. An effects-based approach to
discrimination is the logical next step in the evolution
of s. 15 jurisprudence since Andrews.
Homosexual couples are denied the equal benefit
of the law on the basis of the legislative distinction in
s. 2 of the Old Age Security Act, which defines couples
as relationships of "opposite sex". That the appellants
are able to claim higher benefits as separate individuals
does not alter the fact that they have been denied the
benefits, both tangible and intangible, of filing for old
age benefits as a couple. The impugned distinction
excludes the rights claimants because they are
homosexual. Consideration of both the nature of the
group and the interest affected leads us to conclude that
the distinction is discriminatory. Same-sex couples are a
highly socially vulnerable group, in that they have
suffered considerable historical disadvantage,
stereotyping, marginalization and stigmatization within
Canadian society. The distinction relates to a
fundamental aspect of personhood and affects individuals
who, in addition to being homosexuals, are also elderly
and poor. Turning to the interest affected, the impugned
legislation is a cornerstone in Canada's social security
net, which is, in turn, a cherished and fundamental
institution in our society.
The violation of s. 15(1) of the Charter cannot
be salvaged by s. 1, as it is not relevant to a
proportionate extent to a pressing and substantial
objective. While the objective of the legislation is
pressing and substantial, the means chosen to achieve
this objective fails all three branches of the
proportionality test. The legislation excludes couples
who would fill all of the other criteria in the Act
except the requirement that they are of the opposite sex.
To find that this distinction is rationally connected to
the objective of the legislation requires us to conclude
that same-sex couples are so different from married
couples that it would be unreasonable to make the same
benefits available to both. At best, the government has
only demonstrated that this is its assumption. The
presumption that same-sex relationships are somehow less
interdependent then opposite-sex relationships is,
itself, a fruit of stereotype rather than one of
demonstrable, empirical reality. Nor is s. 15 minimally
impaired. A reasonable alternative remedy is available:
the discriminatory effect would be eliminated without
prejudice to the rights or interests of any other group
by extending coverage to same-sex couples who otherwise
fulfil all of the other non-discriminatory criteria
required in the Act. Deference under this branch of the
s. 1 test is not appropriate when there is a reasonable
alternative that is readily available, that is not the
subject of conflicting social science views, and that
could not result in a concomitant prejudice to another
group. Finally, the deleterious effects of the impugned
distinction outweigh its salutary effects.
Per McLachlin J. (dissenting): The reasons of
Cory and Iacobucci JJ. were substantially agreed with.
On the basis of the principles outlined in Miron v.
Trudel, released concurrently, the impugned legislation
infringes s. 15(1) of the Charter and the infringement is
not saved under s. 1.
--
Julio Ducat P. 1962-1995
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